Ashe Brick Co.

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1383 (N.L.R.B. 1986)

ASHE BRICK CO.
Ashe Brick Company and Aluminum , Brick and
Glass Workers International Union, Local No.
904, AFL-CIO, CLC. Case 11-CA-11839
31 July 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 21 April 1986 Administrative Law Judge
William N . Cates issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing
recognition from the Union as the exclusive bar-
gaining representative of certain of its employees in
an admittedly appropriate unit, by conditioning the
signing of an agreement on the Union 's payment
for damages to the Respondent 's facility, and by re-
fusing to execute a written contract embodying the
full and complete agreement arrived at between the
parties with respect to the rates of pay, wages,
hours, and other terms and conditions of employ-
ment . The judge also found that the strike, which
began on 6 May 1985 as an economic strike, was
converted to an unfair labor practice strike on 18
October 1985, the date the Respondent withdrew
recognition from the Union.
In fashioning a remedy the judge found that all
striking employees had been permanently replaced
prior to the time the strike was converted from an
economic strike to an unfair labor practice strike.
He therefore declined to recommend the usual
Board remedy requiring the Respondent to rein-
state, on unconditional request , all striking employ-
ees who had not been permanently replaced before
the date the strike became an unfair labor practice
strike. Instead , the judge directed the Respondent
to place all employees who were on strike at the
time it was converted to an unfair labor practice
strike on a preferential hiring list, based on seniori-
ty or some other nondiscriminatory test . The Gen-
eral Counsel contends that , in view of the fact that
some of the replacements were hired after the
' We note that no exceptions have been filed on the ments of the
judge's decision.
1383
strike's conversion, this remedy is contrary to the
Board's established policy as enunciated in Charles
D. Bonanno Linen Service, 268 NLRB 552 (1984),
and Larand Leisurelies, Inc., 213 NLRB 197 (1974).
In particular , the record shows that at least seven
employees were hired in unit positions after the
strike was converted; and the General Counsel
urges that the judge should have ordered those
seven employees dismissed and the displaced strik-
ers reinstated and made whole. We find merit in
the General Counsel's exceptions. Accordingly, we
substitute the following for the judge's remedy, and
insert corresponding provisions in the Order.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
actions designed to effectuate the policies of the
Act.
We have found that the Respondent violated the
Act by withdrawing recognition from the Union
and by refusing to bargain with the Union as the
exclusive bargaining representative of its employees
in an appropriate unit. To remedy these violations,
we shall require the Respondent to recognize and
on request bargain in good faith with the Union as
the exclusive bargaining representative of its em-
ployees in the appropriate unit. Additionally, as we
have found that the Respondent violated its obliga-
tions under the Act by refusing to execute a con-
tract embodying the terms of the agreement it
reached with the Union, we shall order the Re-
spondent, on request, to sign such an agreement.
The Respondent shall be required to give retroac-
tive effect to the terms of the agreement to its ef-
fective date of 28 October and to make whole its
employees for any losses they may have suffered as
a result of the Respondent 's refusal to sign the
agreement in accordance with the formula set forth
in Ogle Protection Service, 183 NLRB 682 (1970).
All monetary redress shall bear interest as author-
ized by Florida Steel Corp., 231 NLRB 651 (1977).
On 28 October 1985, the Union requested uncon-
ditional reinstatement on behalf of all employees
who participated in the strike begun on 6 May
1985. The strike was converted to an unfair labor
practice strike by the Respondent's violation of
Section 8(a)(5) on 18 October 1985. Accordingly,
we shall require the Respondent to reinstate to
their former or substantially equivalent positions all
strikers who were not permanently replaced before
18 October 1985 without impairment of their se-
niority and other rights and privileges. In order to
make room for them, the Respondent shall dismiss,
if necessary, all persons hired after 18 October
280 NLRB No. 162
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1985 . If, after such dismissals , there are insufficient
positions available for the remaining former strik-
ers, those positions which are available shall be dis-
tributed among them without discrimination be-
cause of their union membership or activities or
participation in the strike, in accordance with se-
niority or other nondiscriminatory practice utilized
by the Respondent . Those former strikers who
were permanently replaced prior to conversion and
for whom no employment is immediately available
shall be placed on a preferential hiring list in ac-
cordance with their seniority or other nondiscrim-
inatory practice utilized by the Respondent, and
they shall be reinstated before any other persons
are hired or on the departure of their preconver-
sion replacements . See Gulf Envelope Co., 256
NLRB 320 (1981), and Windham Community Me-
morial Hospital, 230 NLRB 1070 (1977).
The Employees entitled to immediate reinstate-
ment shall be made whole for any loss of earnings
they may have suffered by reason of the Respond-
ent's refusal to reinstate them pursuant to their un-
conditional requests by paying to each of them a
sum of money equal to that which each would
have earned during the period commencing on 28
October 1985 to the date of the Respondent 's offer
to reinstatement, less any net earnings during such
period. National Car Rental System, 237 NLRB 172
(1978). Backpay and interest shall be computed in
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and Florida Steel Corp., supra.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified to reflect the amended remedy
and orders that the Respondent , Ashe Brick Com-
pany, Van Wyck, South Carolina, its officers,
agents, successors, and assigns , shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(d).
"(d) Offer, on application, to all the employees
engaged in an unfair labor practice strike who
were not permanently replaced while economic
strikers reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority
or other rights and privileges, discharging, if neces-
sary, any replacements hired on or after 18 Octo-
ber 1985."
2. Insert the following as paragraphs 2(e) and (f)
and reletter the subsequent paragraphs.
"(e) Make whole employees who have made
such a request for reinstatement but who have been
offered reemployment for any loss of pay from
date of their 28 October 1985 unconditional offer
to return to work and terminating on the date of
the Respondent's offer of reinstatement, in the
manner set forth in the section of this decision enti-
tled `The Remedy.'
"(f) Place the remaining former strikers on a
preferential hiring list in accordance with their se-
niority or other nondiscriminatory practice utilized
by the Respondent and offer them employment
before any other persons are hired or on the depar-
ture of any replacement hired before 18 October
1985."
3. Delete the last sentence of paragraph 2(g).
4. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to recognize and bargain in
good faith with Aluminum , Brick and Glass Work-
ers International Union, Local Union #904, AFL-
CIO, CLC , as the exclusive bargaining representa-
tive of our employees in the following unit:
All full-time production, maintenance and
shipping employees , truck drivers and helpers
employed at our Van Wyck, South Carolina
plant; but excluding clerical and office em-
ployees, draftsmen , subcontractors and their
employees, technical and professional employ-
ees, guards and supervisors as defined in the
Act.
WE WILL NOT fail or refuse on request to exe-
cute the collective-bargaining agreement agreed
upon between us and the Union.
WE WILL NOT condition the signing of a collec-
tive-bargaining agreement on the Union paying for
damages of an undetermined cause at our plant.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
ASHE BRICK CO. 1385
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and on request bargain in
good faith with the Union as the exclusive bargain-
ing representative of our employees in the unit de-
scribed above.
WE WILL, on request by the Union, execute the
collective-bargaining agreement upon which agree-
ment was reached between us and the Union.
WE WILL give retroactive effect to the terms and
conditions of employment of the collective-bargain-
ing agreement and make whole our employees for
any losses they may have suffered by reason of our
failure to sign the agreement , with interest.
WE WILL offer to all the employees engaged in
an unfair labor practice strike who were not per-
manently replaced while economic strikers, and
who offered to return to work on 28 October 1985,
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, discharging, if necessary, any
replacements hired on or after 18 October 1985.
WE WILL make whole such employees for any
loss of earnings and benefits they may have suf-
fered, with interest, as a result of our failure to re-
instate them promptly after their 28 October 1985
offer to return to work.
WE WILL place the remaining former strikers on
a preferential hiring list in accordance with their
seniority or other nondiscriminatory practice and
offer them employment before any other persons
are hired or on the departure of any replacement
hired before 18 October 1985.
Union's paying for damages to the Company's facility
and by refusing to execute a written contract embodying
the full and complete agreement arrived at between the
parties with respect to the rates of pay, wages, hours of
employment , and other terms and conditions of employ-
ment of the employees in an admittedly appropriate unit.
It is also alleged that the strike at the Company, which
started as an economic strike, was converted to an unfair
labor practice strike at the time the Company withdrew
recognition of the Union. The Company , in its answer to
the complaint dated 27 December, admits various allega-
tions of the complaint but denies the commission of any
of the alleged unfair labor practices. I find for the Gen-
eral Counsel on all issues.
On the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
General Counsel's brief, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Company is a South Carolina corporation with a
manufacturing plant located at Van Wyck, South Caroli-
na, where it is engaged in the manufacture of bricks.
During the year preceding issuance of the complaint the
Company purchased and received at its Van Wyck,
South Carolina facility goods and raw materials valued
in excess of $50,000 directly from suppliers located out-
side the State of South Carolina. The complaint alleges,
the Company by its answer admits, and I find it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint further alleges, the Company admits,
and I find the Union is a labor organization within the
meaning of Section 2(5) of the Act.
ASHE BRICK COMPANY
Paris Favors Jr., Esq., for the General Counsel.
J. W Alexander, Esq., of Charlotte, North Carolina, for
the Company.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This
case was tried at Rock Hill, South Carolina, 11 February
1986.1 The charge was filed 12 November and amended
25 November and 23 December by Aluminum, Brick and
Glass Workers International Union, Local Union #904,
AFL-CIO, CLC (Union). The complaint, issued 24 De-
cember, alleges that Ashe Brick Company (Company)
violated Section 8(aX5) and (1) of the National Labor
Relations Act (Act), by withdrawing recognition of the
Union as the exclusive bargaining representative of cer-
tain of its employees in an admittedly appropriate unit,
by conditioning the signing of an agreement on the
' All dates are in 1985 unless otherwise indicated
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
This case presents a number of questions which were
thoroughly litigated. The issues, generally summarized
for purposes of discussion, are as follows:
1. Whether the Company lawfully withdrew recogni-
tion of the Union as the exclusive bargaining representa-
tive for certain of its employees in an appropriate unit.
2. Whether the Company and the Union reached a full
and complete agreement covering the terms and condi-
tions of employment of employees in an admittedly ap-
propriate unit and whether the Company then refused to
execute such an agreement.
3. Whether the Company maintained , as a prerequisite
to reaching an agreement, that the Union pay $30,000 for
damages to its property of an undetermined cause and, if
it did so insist, whether such actions constituted a viola-
tion of the Act.
4. Whether the strike, which admittedly took place,
was prolonged and converted to an unfair labor practice
strike by the Company 's withdrawal of recognition of
the Union.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Background
The pleadings establish that on 1 September 1981 the
Union was designated the exclusive bargaining represent-
ative for all full-time production , maintenance , and ship-
ping employees, truckdrivers and helpers employed by
the Company at its Van Wyck, South Carolina facility.
Since September 1981 the Company has recognized and
bargained with the Union , the parties have entered into
successive collective-bargaining agreements with the
most recent one effective by its terms from 5 May 1984
to 5 May 1985 . The parties met on six occasions starting
on 23 April to negotiate for a successor agreement. 2 The
other bargaining sessions were on 1, 3, 15, and 31 May
and 15 July.3 In April the Company employed 58 unit
and 15 probationary employees.4 About 6 May certain
employees of the Company concertedly ceased work and
engaged in a strike. On 18 October the Company with-
drew recognition of the Union as the exclusive bargain-
ing representative of its employees. On 28 October the
Union informed the Company that it was accepting the
Company's contract proposals and made an uncondition-
al offer on behalf of those engaging in the strike to
return to work. The strike ended on 12 November.
C. Current Events
In setting forth the operative facts related to the bar-
gaining sessions , I have relied primarily on the credited
testimony of International Union Representative Jett. 5
The 23 April negotiating session was held at the Com-
pany's offices in Charlotte, North Carolina.6 Those
present' for the Company were Consultant Daniel, Chief
Executive Officer Joe Cathey (Cathey), and Plant Man-
ager Larry Huntley (Huntley). In addition to Internation-
al Representative Jett, the Union was represented by
Local President Sylvester Hayden (S. Hayden) along
with Theodore Hayden (T. Hayden) and Raleigh
Y There is no dispute concerning where the meetings were held or
who represented the parties at the meetings The chief spokesperson for
the Company was Industrial Consultant Richard Daniel (Daniel). Al-
though Daniel is not an employee of the Company, the parties stipulated
that for the purposes of this case he was an agent of the Company within
the meaning of Sec. 2(13) of the Act. International Representative
Dwight Jett (Jett) served as spokesperson for the Union.
a The 15 July meeting was not face to face ; it was conducted through
mediators from the state and Federal Government.
4 In the most recent contract between the parties, probationary em-
ployees were specifically excluded from the terms and provisions of the
agreement-5
Company counsel stated at trial the Company had no significant
quarrel with Jett's recitation of what happened during the bargaining ses-
sions except for three specific items . Those three items are : (1) what Jett
said in connection with the subject of checkoff; (2) the $30,000 damages
to company property; and (3) what Jett said about how many employees
would go on strike . I shall address the three areas of factual concern to
the Company elsewhere in this decision.
a I shall not , in this decision , describe and analyze each and every pro-
posal made by the two sides herein. In essence, the Company was look-
ing to negotiate a contract very similar to the most recent agreement, and
the Union was very interested in wages , insurance , seniority, job bidding,
and checkoff.
T The parties' representatives were the same at each of the meetings
except Chief Executive Officer Cathey did not attend the 15 May meet-
ing.
Hayden (R. Hayden ).8 Jett presented the Union's pro-
posals which followed the provisions of the most recent
collective-bargaining agreement with suggested
changes .9 The Union's proposals were discussed and the
Company informed the Union it would "cost it out"
their proposals and come back with their own proposals
at the 1 May meeting.
The parties had no contact with each other between
23 April and the 1 May meeting.
On 1 May the parties again met at the Company's
Charlotte, North Carolina offices. The Company present-
ed its proposals which were explained by Consultant
Daniel . After going over each of the Company's propos-
als, the parties again reviewed the Union 's proposals. No
agreement was arrived at except that the parties would
meet again on 3 May.
The 3 May meeting , held at the Company's offices in
Charlotte, North Carolina, is the first meeting where the
parties have differences (albeit in a limited respect) about
what was said during bargaining . There is, however, no
dispute that the parties went over both proposals. The
Union did not agree to the Company's proposals, but did
agree to drop certain of its own demands . The Union
dropped its proposals relating to: (1) holidays-Jett ex-
plained the employees needed more money, therefore,
holidays were not all that important to them; (2) vaca-
tion days-again, it was explained that pay was more im-
portant than vacation days ; (3) shortening the probation-
ary period; and (4) changing the language in the work
stoppage provisions . The Union did state at this meeting
that it had to have, and would strike to obtain, its pro-
posals on: (1) seniority; (2) insurance; (3) wages; (4) job
bidding procedures; and (5) checkoff.' ° The Company's
witnesses (Daniel , Huntley, and Cathey) assert Jett stated
at this meeting that a strike would not hurt the Company
because only 8 to 10 employees would go on strike. Jett
denied he made any such statement . S. Hayden and R.
Hayden supported Jett's denial in their testimony. It is
highly unlikely and very improbable that Jett made the
statement attributed to him . It seems unusual that an
International representative would threaten , during nego-
tiations, to call a strike over certain contract demands,
but then tell the other side's negotiators a strike would
not hurt the other side because only a few employees
would support a strike. The undisputed fact that 43 em-
ployees went on strike the very first day of the strike
lends credence to Jett's denial . I conclude Jett did not
make the statement in issue about the number of employ.
ees that would go on strike." After the talk of a strike,
a Sylvester and Theodore Hayden are brothers and Raleigh Hayden is
their cousin . Sylvester , Theodore, and Raleigh Hayden have worked 14,
20, and 23 years respectively for the Company.
Y Prior to the first bargaining session, Jett met with the union member-
ship to inquire about what was wrong with the then current agreement
and to ascertain what the membership wanted changed . As a result of
that meeting, the Union came up with its proposals.
1" It is undisputed that Jett expressed strong feelings about checkoff
and even stated his Union would not permit him to sign a collective-bar-
gaming agreement without checkoff.
11 Even if the Company 's witnesses were credited, it would not re-
quire a different result on the issue of whether the Company had a good-
faith doubt about the Union's continued majority status.
ASHE BRICK CO.
company representatives caucused and then came back
and stated their proposals were "all they could do."' 2
There was no agreement between the parties and the
meeting ended.
On that same day (3 May) the Union held a meeting
with its members at the White Oak Church in Van
Wyck, South Carolina . There were approximately 40 in
attendance at the meeting . Jett brought those present up
to date on the status of the negotiations with the Compa-
ny. A motion was made to take a strike vote. Such a
vote was taken by secret ballot. Thirty-five voted to
strike and three voted against such action . Jett tele-
phoned Consultant Daniel from the church 's offices and
told him the employees had "voted down bad" the Com-
pany's proposals and asked Daniel if the Company
would like to have a meeting to see if things could be
worked out. Jett told Daniel he did not like "strikes" any
more than anyone else . Company Consultant Daniel re-
sponded to the strike authorization by telling Jett to "let
her rip ." Jett then contacted the Union 's International
president for sanction to strike . Thereafter he explained
to the employees what was entailed in a strike . 13 Jett
told the group he wanted everyone to be out there on
the morning of the strike and he wanted it to be a peace-
ful strike without trouble.
The strike commenced at 6 a .m. on 6 May. Approxi-
mately 43 employees either honored or engaged in the
strike on the first day. On the second day approximately
33 employees either honored or participated in the strike.
By the end of the first week 29 employees were continu-
ing to strike . About 1 month later one other employee
ceased striking . Twenty-eight employees continued to
strike until it ended, 12 November. There were at least
four pickets at each of the two gates to the plant 24
hours per day, 7 days per week , until the strike ended on
12 November.14
There was no contact between the negotiators for
Company and Union from 3 until 15 May.
It appears that at some point after 3 May but before 15
May the parties were contacted by Mediator Leonard
Duggins (Duggins) of the Federal Mediation and Concil-
iation Services and by South Carolina State Mediator
Jessie Sprinkle (Sprinkle) about a meeting . A meeting,
arranged by the mediators , was held at the Holiday Inn's
motel in Rock Hill, South Carolina , on 15 May. Both
parties stood by their earlier proposals and no agreement
was reached ; however, insurance coverage and incentive
pay rates were discussed. Additionally, the Company, for
the first time in negotiations , raised the subject of dam-
ages to its property. Consultant Daniel told Jett there
la At this point in the negotiations , the Company had offered a 1-year
extension of the expired contract with no wage increase . The Company
had, however, agreed to one additional funeral leave day, to post a notice
for job bidding, to work on an incentive pay plan , and to get "better in-
surance" for the employees in September when the then-current policy
expired.
18 Jett stated the employees at the Company had been organized for 20
years but had never gone on strike
14 Plant Manager Huntley acknowledged he observed 8 to 10 pickets
at the gates on each of the three shifts during the times in question.
1387
had been damages in the amount of $30,00015 to compa-
ny property , and stated the Company was holding the
Union responsible for the damages . Daniel told Jett the
Union would have to pay $30,000 to the Company as
compensation for the damages before he would sign a
contract with the Union . 16 Jett told Daniel the Union
would not pay for the damages because he did not think
the Union's people were responsible for the damages.
The meeting ended with no agreement and the strike
continued.
Sometime prior to 31 May Mediator Duggins contact-
ed the parties and arranged a meeting for that date.''
The parties met separately at the Holiday Inn's motel in
Rock Hill, South Carolina, on 31 May with Mediators
Duggins and Sprinkle working between the parties. The
mediators had copies of both side's proposals and at-
tempted to bring about movement between the parties.
The mediators were not successful in their efforts; how-
ever, they did bring the parties together , for approxi-
mately 30 to 45 minutes, for a face-to-face discussion on
the Company's incentive pay plan. There was no move-
ment between the parties even after the face-to-face
meeting . The meeting ended with the Company holding
firm on its proposals and the Union continuing to insist
on its proposals regarding insurance, wages, and check-
off.
The sixth and final bargaining session took place on 15
July at the Holiday Inn's motel in Rock Hill, South
Carolina. The parties did not meet face to face . Media-
tors Duggins and Sprinkle talked separately to both sides
for approximately 45 minutes trying to see if either side
would make any movement toward resolving their dif-
ferences. The mediators informed both sides they did not
see anything they could do at that time to facilitate
movement. The meeting ended on that note. Is
The Union did not attempt to make direct contact
with the Company after 15 July , but rather remained in
contact with the mediators on approximately a weekly
basis. Daniel, in his trial testimony, stated he was con-
tacted three times by the mediators between 15 July and
18 October.' 9
's Daniel stated the Company arrived at the $30,000 figure based on
repairs performed (by company employees) on conveyor belts as well as
lost production time.
'a Daniel stated the Company put the money amount in question on
the negotiating table because it "appeared " the Union had been responsi-
ble for the damages. Daniel stated the appearance of union responsibility
was based on the fact there had not been any damage to the Company's
property prior to the strike . Daniel said company security personnel had
an "inkling" of who was responsible for the damages , but added no one
from the Company ever told him that any particular person was responsi-
ble. Three individuals, including R. Hayden , were arrested , but a local
judge dismisad the actions for lack of evidence.
11 There was no direct contact between the parties from 15 until 31
May
's Dame] testified that as of 15 July the parties were in disagreement
on approximately 12 issues , which he identified as: probationary employ-
ees, funeral leave , insurance, wages, damages to company Property,
temporary/seasonal employees, call-in pay, checkoff, return to work of
all strikers , incentive pay, holidays , and discipline. The Company had
originated counterproposals on holidays and discipline.
's In his pretrial Board affidavit dated 16 December Daniel stated Me-
diator Duggins contacted him every other week trying to get the parties
closer together on an agreement.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On 21 September International Representative Jett
held a meeting with the local union membership .20 Jett
stated those in attendance were concerned that the strike
had been going on for a while and nothing had been ac-
complished . Jett stated he explained that if both sides
held firm in their positions nothing could be done. The
membership agreed to drop its demands for dues check-
off and a job bidding procedure and agreed to reduce the
amount of its wage increase demand from 35 to 25 cents
per hour. 21
I credit Jett's testimony that he informed Mediator
Duggins about the changes in the Union' s position and
that he asked for a meeting with the Company. Accord-
ing to Jett, scheduling problems precluded the parties
from agreeing to a meeting prior to 21 October. Jett
stated that after Duggins informed him that the Compa-
ny22 had agreed to a 21 October meeting Jett told Local
Union President S. Hayden about the agreed-to meeting
date.25 Jett testified Mediator Duggins telephoned him
on 17 October and told him "he didn't know what the
hell was going on, but the Company was trying to back
out of the meeting ." Later, Duggins informed Jett that
the meeting was in fact off. Jett asked Mediators Dug-
gins and Sprinkle to meet with the Union's committee on
21 October anyway because he did not want the commit-
tee and membership to think he was responsible for the
meeting being canceled.
Jett, Duggins, and Sprinkle met with the Union's com-
mittee on 21 October and reviewed the status of negotia-
tions. The union committee discussed the fact that winter
was approaching and decided it would be in the best in-
terest of all to accept the Company's last offer . At that
point, S. Hayden informed Jett he had taken a vote on
the picket line and those involved had already agreed to
accept the Company's last offer if they could not get
anything more.
On that same date , Jett and the Union's committee met
with the membership at the White Oak Church in Van
Wyck, South Carolina. Jett explained to the membership
the options that were available to them and the group
voted unanimously to accept the Company's last offer.
Jett credibly testified that before he left his motel to go
to the membership meeting at the church, he called his
secretary and dictated a telegram to be sent to the Com-
pany accepting the Company's last offer if that was what
the membership voted to do. After the membership's
unanimous vote to accept the Company's last offer, Jett
telephoned his secretary and told her to go ahead and
send the telegram he had earlier dictated. Jeff's secretary
told him that just 20 minutes before his second call she
had received a call from the International 's St. Louis,
ss Approximately 22 employees attended the meeting.
" It is not disputed that the Company gave a 10-cent-per-hour raise to
its employees after 6 May.
as Company Consultant Daniel contends Mediator Duggms had a
"misimpression" that a meeting was agreed to for 21 October. Daniel,
however, acknowledged Duggins called him (he was uncertain of the
date because he failed to bring his notes to court) and wanted to know
"what in the hell was going on" and why the meeting had been canceled.
Notwithstanding Daniel's testimony , I am persuaded Duggms arranged
for and all parties agreed to a 21 October meeting.
as Jett could not explain how it came to be but notice of the 21 Octo-
ber meeting appeared in an area newspaper.
Missouri office telling her the Company had withdrawn
its recognition of the Union.24 Jett testified his superiors
instructed him to have the employees continue to strike
until the Union's legal department could tell him what to
do.
Thereafter, on 28 October, Jett sent the following tele-
gram to the Company:
The Aluminum Brick and Glass Workers Interna-
tional Union AFL-CIO CLC on behalf of Local
904 hereby accepts the Company's last offer which
includes a 10 cent per hour wage increase , an incen-
tive plan and increased insurance at a later date, in-
creased funeral pay and the agreed to contract lan-
guage, we are prepared to return to work immedi-
ately. If you have any questions, contact myself or
Sylvester Hayden.
On 28 October Chief Executive Officer Cathey sent
the following letter to International Union Representa-
tive Jett:
As I stated to you in our letter of October 18,
1985, we no longer recognize your union as the bar-
gaining agent for our employees.
Accordingly, your offer to modify our expired
contract proposal and then to accept it as a binding
agreement is denied.
On 12 November the 28 remaining strikers ended the
strike.
D. Analysis and Conclusions
1. The withdrawal of recognition
The Board, in Burger Pits, Inc., 273 NLRB 1001
(1984), set forth the following succinct statement of legal
principles governing an employer 's withdrawal of recog-
nition of a union:
It is well settled that absent unusual circum-
stances a union enjoys an irrebuttable presumption
of majority status during the first year following its
certification. After the certification year the pre-
sumption of majority status becomes rebuttable.
Whether certified or voluntarily recognized, a union
also enjoys a rebuttable presumption of majority
status upon the expiration of a collective-bargaining
agreement. An employer who refuses to bargain
with an incumbent union may rebut the presump-
tion of majority status by establishing either (1) that
at the time of the refusal to bargain the union in
fact did not enjoy majority status, or (2) that the re-
fusal was predicated on a good-faith and reasonably
grounded doubt, supported by objective consider-
84 The Company's letter to International Union President Lawrence A.
Holly in Bridgeton, Missouri, dated 18 October, signed by Chief Execu-
tive Officer Catbey, reads as follows : "All existing circumstances lead us
to the conclusion that the Union no longer represents a majority of our
employees . Therefore, we hereby withdraw recognition of your union as
their bargaining agent."
ASHE BRICK CO.
ations, of the union's majority status. [Footnotes
omitted.]
It is also well established Board law that an employer
may not avoid its duty to bargain by relying on a loss of
majority status attributable to its own unfair labor prac-
tices. Master Slack Corp., 271 NLRB 78 at 84 (1984).
The Company does not contend nor has it been dem-
onstrated that the Union, in fact, lost its majority status.
There is no contention the Company engaged in any
unfair labor practices prior to the withdrawal of recogni-
tion . Therefore, examination of the instant case turns to
the Company's contention that it had a reasonably
grounded good-faith doubt of the Union's continued ma-
jority status.
Chief Executive Officer Cathey testified about the
withdrawal of recognition as follows:
Q. (By company counsel) Why did you withdraw
recognition from the Union?
A. (Chief Executive Officer Cathey) On July
15th, the last meeting that we held. Leonard Dug-
gins and Jessie Sprinkle came into the room, which
we had rented for these meetings , and Leonard
Duggins said , that there has been no change in the
Union's position. They are maintaining that they are
going to have check off and that all of the strikers
would come back or none of the strikers would
come back. And, Leonard Duggins said at that
point, I see no reason for us to stay here any longer.
He told us to leave and I assume he told the strik-
ers.
On cross-examination, Cathey stated he based his belief
that the Union had lost its majority status on the fact he
did not hear from anyone with the Union from 15 July
until late October. Cathey stated South Carolina State
Mediator Sprinkle contacted him during that time and
that Company Consultant Daniel informed him Federal
Mediator Duggins had contacted him.25 Cathey also
stated , on cross-examination , that in addition to not hear-
ing from the Union "it seemed [to him] like [the Union]
did not represent the majority of [the] employees at that
time." Cathey stated he based his feelings on the employ-
ee "spirit" he observed in the plant. Cathey said he
measured "the spirit in the plant" in the following
manner:
Well, I think you know what I mean, when the em-
ployees whistle and they show up on time, they
work hard and your production is more than it was
in . . . the same time last year , there must be a
pretty good attitude in the plant. Our production
was up not down.
Cathey also stated, "It looked to me like [the striking
employees] were fighting a pretty lonely cause out
there." Cathey stated he did not talk with any employees
about the Union and none of them ever told him they
25 Cathey stated he thought Duggins also contacted him during that
same time period . Cathey acknowledged he went through the gates
where the strikers were during that time on an almost daily basis.
1389
wanted to resign from the Union or that they were dis-
satisfied with the Union.
The Company's contention that it had a good-faith and
reasonably grounded doubt of the Union's continued ma-
jority status is without merit inasmuch as it failed to sup-
port its doubt with any objective considerations . First,
the Union is presumed to enjoy majority status at the ex-
piration of the most recent collective -bargaining agree-
ment. The Union demonstrated its majority support
when 43 of the 58 unit employees went on strike the first
day of the strike.26 Although the number of employees
who continued to strike until it was over dwindled to 28,
the Company never demonstrated any basis for its
claimed good-faith doubt that the Union had lost its ma-
jority status. Even if the Company's contentions are true
that the employees who returned to work, as well as the
strike replacements, "whistled" and "showed up for
work on time" while those who remained on the picket
line looked "lonely," such actions by the employees and
observations by the Company are insufficient to support
its claim of a good-faith doubt that the Union no longer
represented a majority of its employees. The fact that
some employees crossed the picket line and others, who
had at first withheld their services, returned to work,
does not establish a sufficient basis to support a with-
drawal of recognition. The Board has long recognized
that returning strikers may cross their union's picket line
for numerous reasons unrelated to a repudiation of the
Union. Employees may, for example, return for financial
reasons, or their unwillingness to support the particular
strike in progress. Strike replacements may also cross a
picket line for similar reasons which do not warrant,
standing alone, a presumption of rejection of the union as
a bargaining representative. Pennco, Inc., 250 NLRB 716
(1980). See also Stormor, Inc., 268 NLRB 860 at 866
(1984). The Company failed to produce any evidence
other than a spirited work force to demonstrate its good-
faith doubt of the Union's continued majority status. No
employees ever told anyone from management that they
were dissatisfied with the Union or that they no longer
desired the Union to represent them. There is, however,
evidence to indicate that at least some of those who re-
turned to work continued to support the Union because
they, on a weekly basis, gave financial support to those
employees who remained on strike. The Company's ap-
parent contention that the Union abandon the negotia-
tions or the striking employees is patently without merit.
Although International Union Representative Jett did
not directly contact the Company between 15 July and
28 October, he contacted the mediators throughout that
time period. It had been the Union's practice throughout
negotiations to deal with the Company only at negotiat-
ing sessions or through the mediators . 27 It is undisputed
26 The Company contended at trial that the work force was 73 on the
first day of the strike . However, in order to arrive at that number, the
Company had to include 15 probationary employees who were, by the
terms of the most recent collective-bargaining agreement , specifically ex-
cluded from the bargaining unit. Even if the employee complement Was
73, the Union still demonstrated majority support at the beginning of the
strike.
27 Company Consultant Daniel acknowledged, on cross-examination,
that Mediator Duggins called him every other week trying to get the
parties together.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that after 15 July International Union Representative Jett
contacted Local Union President S. Hayden once or
twice a week.
Finally, no support for the Company's good-faith
doubt of the Union's continued majority status can be
found in the alleged statement attributed to International
Representative Jett-that if a strike occurred the Compa-
ny would not be hurt because only 8 to 10 employees
would join the strike-because no such statement was
ever made.28
In light of all of the above I am persuaded and find
the Company has failed to meet its burden of establishing
a good-faith doubt based on objective considerations of
the Union's majority status at the time it withdrew rec-
ognition of the Union. Accordingly, I find the Company
violated Section 8(a)(5) and (1) of the Act by withdraw-
ing recognition of the Union on 18 October.
2. Whether there was an agreement and a failure to
execute it
Section 8(d) of the Act requires the parties to a collec-
tive-bargaining relationship to execute "a written con-
tract incorporating any agreement reached if requested
by either party." H J. Heinz Co. v. NLRB, 311 U.S. 514
(1941). A principal question that must be addressed is
whether the parties actually reached an agreement. A re-
lated question , in cases such as the one sub judice, relates
to the role of "offer and acceptance" in a collective-bar-
gaining setting as opposed to traditional contract law.
Normally, under the traditional rules of contract law, an
offer once rejected ceases to exist . However, the Board
and courts have held that is not the case in labor law.
The court, in Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d
87 (8th Cir. 1981), considered the question of whether in
negotiating a collective-bargaining agreement an uncon-
ditional offer remained open to acceptance after the
other party had rejected the offer and/or had submitted
counterproposals. The court in granting enforcement of
the Board's Order in Pepsi-Cola stated:
The rule is well established that technical rules of
contract law do not control whether a collective
bargaining agreement has been reached.
In a private commercial setting, the parties vol-
untarily contract with each other. Traditional con-
tract law therefore provides that an offer terminates
if rejected by the offeree, thus allowing the offering
party free to strike a bargain elsewhere, with no
danger of being bound to more than one contract.
In contrast, the National Labor Relations Act com-
pels the employer and the duly certified union to
deal with each other and to bargain in good faith.
Upon rejection of an offer, the offeror may not seek
another contracting party. As explained by the Su-
preme Court, "The choice is generally not between
Sa Even if such a statement had been made it could not form the basis
for a good-faith doubt of the Union's majority status at the time the Com-
pany withdrew recognition of the Union because of certain intervening
factors such as the fact that 43 employees went on strike the first day of
the strike.
entering or refusing to enter into a relationship, for
that in all probability preexists the negotiations."
United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 580 (1959).
Thus, the common law rule that a rejection or
counterproposal necessarily terminates the offer has
little relevance in the collective bargaining setting.
In addition , this contract principle runs counter to
federal labor policy which encourages the forma-
tion of collective bargaining agreements . We there-
fore agree with the Board's policy, as stated in its
brief, that
a contract offer is not automatically terminated
by the other party's rejection or counterproposal,
but may be accepted within a reasonable time
unless it was expressly withdrawn prior to ac-
ceptance, was expressly made contingent upon
some condition subsequent, or was subject to in-
tervening circumstances which made it unfair to
hold the offeror to his bargain.
Under this policy, an offer, once made, will remain
on the table unless explicitly withdrawn by the of-
feror or unless circumstances arise which would
lead the parties to reasonably believe that the offer
had been withdrawn. [Footnotes omitted.]
From the above, it is clear that if an open-ended offer
is made by one party, the other party may, for a reasona-
ble period of time and absent intervening circumstances,
accept that offer even if the party accepting the offer has
earlier rejected the offer or has made counterproposals.
In the instant case the Company offered the Union a
complete contract package by as early as 3 May. Jett de-
scribed the Company's package as a 1-year extension of
the expired collective-bargaining agreement with certain
additional modifications or agreements. Jett credibly
stated the Company offered I additional day of funeral
leave, a job bidding procedure, better insurance when
the then current policy expired, and an incentive pay
plan. The specifics of the incentive pay plan were dis-
cussed on 15 May and the Company's written proposal
was provided to the Union at least by 31 May. There
was, without question, a complete package of company
proposals on the bargaining table as of 28 October. The
Union had, during negotiations , rejected outright some
of the Company's proposals and had made counterpro.
posals of its own. However, there is no evidence the
Company ever withdrew its package of proposals prior
to the Union's acceptance of its proposals on 28 October.
The Union's acceptance of the Company's proposals was
"in toto" and it did not, by its 28 October telegram,
insist on anything other than what the Company had of-
fered in negotiations, or had provided to its employees
who continued to work during the strike. The Union's
mention, in its acceptance telegram of a 10-cent -per-hour
wage increase, was not a new proposal on its part, but
rather was a reminder to the Company that it had grant-
ed an across-the-board wage increase to all employees
and as such the employees returning to work from the
strike would be entitled to such an increase. The Union's
mention in its telegram of the agreed -upon contract lan-
ASHE BRICK CO.
guage and the incentive pay plan were simply references
to the Company's two written proposals-its initial con-
tract proposal and its separate proposal on incentive pay.
It is true the Union had first rejected the Company's in-
centive pay plan, but nothing would preclude the Union
from changing its position and accepting that plan. The
Union's mention, in its telegram of an additional day of
funeral leave, was nothing more than a reference to
something the parties had agreed on early in negotia-
tions . The Union's mention of increased insurance was a
reference to the Company's offer made early in negotia-
tions to obtain "better insurance" for the unit employees
when the Company's then current policy expired.29
From all the above, it is clear that the Union, on 28 Oc-
tober, unequivocally accepted, without modification, s o
the Company's complete contract packages" at a time
when its proposals had not been withdrawn from the
bargaining table.32 By the Union's acceptance of the
Company's outstanding offer, an enforceable contract
was formed and the Company was thereafter obligated
to execute and abide by that contract. Its failure to do so
is a violation of Section 8(a)(5) and (1) of the Act.33
3. Damages as a condition to signing a contract
It is without dispute that Company Consultant Daniel
told International Union Representative Jett that the
Union would have to pay $30,000 to the Company as
compensation for damages before the Company would
sign a contract with the Union. The Union rejected this
demand. S4
The subject of compensation for damages to a compa-
ny's property is a permissive, nonmandatory, subject of
bargaining . That is, it is a subject that is outside the
scope of "wages, hours, and other terms and conditions
29 It is recognized that specific details pertaining to the new insurance
coverage were not worked out. However, an absence of administrative
details in a proposal is not an impediment to a finding that an agreement
has been arrived at.
30 I note the Union's acceptance telegram did not demand as a precon-
dition to an agreement that all striking employees be returned to work
The telegram merely reflected that the striking employees were prepared
to return to work
i The Union accepted all the Company 's proposals except its proposal
that the Union pay $30,000 for alleged damages to company property
caused by some unknown person or persons . I have addressed that par-
ticular issue elsewhere in this decision.
32 The Company 's complete package includes its initial contract pro-
posals (G.C Exh. 4), its incentive pay proposals (G.C. Exh. 5); one ad-
dional funeral leave day , a "better insurance" plan to be obtained by the
Company, and the 10-cent-per-hour wage increase given to all other em-
ployees.
99 Although the Union 's acceptance of the Company's offer came ap-
proximately 3-1/2 months after the parties ' last formal bargaining session,
I do not, under the circumstances of this case, find that to be an unrea-
sonable time for the offer to be considered open and available for accept-
ance . The parties were , during that 3-1/2 month period of time, in con-
tract with the Federal and state mediators who were attempting to bring
about movement between the parties so that an agreement could be ar-
rived at The Company could have, at any point during that period of
time, informed the Union through the mediators , or otherwise, that it was
withdrawing its offer . The Company, however, did not do so. The Com-
pany has not presented any evidence of any intervening circumstances
which would make it unfair to hold it to its bargain.
34 Jett stated he rejected the Company 's demand because he did not
believe the Union was responsible for the alleged damages As noted else-
where in this decision , the Company was unable to offer any proof re-
garding who was responsible for the damages.
1391
of employment." Insistence upon agreement on a non-
mandatory matter or provision as a prerequisite to exe-
cuting an agreement constitutes a per se violation of Sec-
tion 8(a)(5) of the Act. Accordingly, I fmd the Compa-
ny, through its agent Daniel about 15 May, violated Sec-
tion 8(a)(5) and (I) of the Act by conditioning the sign-
ing of an agreement on the Union paying compensation
to the Company for damages of an undetermined
cause.sb
4. The conversion of the economic strike to an
unfair labor practice strike
As is set forth elsewhere in this decision, certain of the
Company's employees went on strike on 6 May because
the Company and Union were unable to agree on a col-
lective-bargaining agreement . The strike was an econom-
ic strike. On 18 October the Company, by letter, unlaw-
fully withdrew recognition of the Union as the exclusive
bargaining representative of its employees in an appropri-
ate unit. The Union, in a telegram dated 28 October,
made an unconditional offer on behalf of the striking em-
ployees to return to work. The strike actually continued
until 12 November. The General Counsel contends the
Company's unlawful withdrawal of recognition on 18
October converted the economic strike to an unfair labor
practice strike. The Company's unlawful withdrawal of
recognition precluded the possibility of the parties enter-
ing into a collective -bargaining agreement . Accordingly,
I fmd in agreement with the General Counsel that the
economic strike was converted to an unfair labor prac-
tice strike on 18 October. See Wilder Construction, 276
NLRB 977, 982 ( 1985).
The General Counsel, at trial herein, asserted in his
opening statement that all striking employees had been
permanently replaced by mid-May. The General Counsel
renewed that contention in his posttrial brief . Inasmuch
as it is the position of the General Counsel that all strik-
ing employees had been permanently replaced prior to
the time the strike was converted from an economic to
an unfair labor practice strike, I shall not direct the usual
Board remedy which would require the Company to re-
instate upon unconditional request all striking employees
who had not been permanently replaced before the date
the strike became an unfair labor practice strike. I shall,
however, direct that the Company place all employees
that were on strike at the time it was converted to an
unfair labor practice strike on a preferential hiring list,
based on seniority or some other nondiscriminatory test,
for employment if suitable jobs become available.36
On the foregoing factual findings and conclusions, I
reached the following
as I am persuaded the Company 's insistence on this permissive matter
did not impede the Union from accepting, as it did, the Company 's other
contract proposals.
36 For a discussion of the remedies available to unfair labor practice
stri kers, see generally Sanderson Farms, 271 NLRB 1477 at 1482 ( 1984).
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Ashe Brick Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Aluminum Brick and Glass Workers International
Union, Local Union #904, AFL-CIO, CLC is a labor
organization within the meaning of Section 2(5) of the
Act.
3. The following unit is appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All full-time production, maintenance and shipping
employees, truck drivers and helpers employed at
the Employer's Van Wyck, South Carolina plant;
but excluding clerical and office employees, drafts-
men, subcontractors and their employees , technical
and professional employees , guards and supervisors
as defined in the Act.
4. Aluminum Brick and Glass Workers International
Union, Local Union #904, AFL-CIO, CLC has been the
exclusive bargaining representative of the Company's
employees in the above -described bargaining unit at least
since 1 September 1981, and continues to remain such
representative for the purposes of collective -bargaining
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment of
those employees.
5. By, about 15 May, conditioning the signing of a col-
lective-bargaining agreement on the Union paying for
damages of an undetermined cause, the Company violat-
ed Section 8(a)(5) and (1) of the Act.
6. By withdrawing recognition on 18 October and by
refusing to recognize or bargain with the Union since
that date, the Company has violated Section 8(a)(5) and
(1) of the Act.
7. The strike, which began as an economic strike on 6
May, was converted to an unfair labor practice strike on
18 October, the date the Company unlawfully withdrew
recognition of, and refused to bargain with, the Union.
8. By refusing about 28 October to execute the written
contract embodying the full and complete agreement
reached by the parties, the Company violated Section
8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that the Company violated the Act by
withdrawing recognition of the Union and by refusing to
bargain with the Union as the exclusive bargaining repre-
sentative of its employees in an appropriate unit, I shall
recommend the Company be ordered to recognize and
on request bargain in good faith with the Union as the
exclusive bargaining representative of its employees in
the appropriate unit. Additionally, as I have found that
the Company violated its obligations under the Act by
refusing to execute a contract embodying the terms of
the agreement it reached with the Union, I shall recom-
mend it be ordered on request to sign such an agreement.
It is recommended that the Company be required to give
retroactive effect to the terms of the agreement to its ef-
fective date (28 October) and to make whole its employ-
ees for any losses they may have suffered as a result of
the Company's refusal to sign such an agreement in ac-
cordance with the formula set forth in F W. Woolworth
Co., 90 NLRB 289 (1950). All monetary redress shall
bear interest as authorized by Florida Steel Corp., 231
NLRB 651 (1977).37 It is also recommended that the
Company be ordered to post the attached notice to em-
ployees marked "Appendix" for a period of 60 days.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edSs
ORDER
The Respondent, Ashe Brick Company, Van Wyck,
South Carolina, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with Aluminum Brick and Glass Workers International
Union, Local Union #904, AFL-CIO, CLC as the exclu-
sive representative of its employees in the following unit:
All full-time production, maintenance and shipping
employees, truck drivers and helpers employed at
the Employer's Van Wyck, South Carolina plant;
but excluding clerical and office employees, drafts-
men, subcontractors and their employees, technical
and professional employees, guards and supervisors
as defined in the Act.
(b) Refusing to bargain in good faith by failing and re-
fusing to execute the collective-bargaining agreement
agreed on by the Company and the Union.
(c) Conditioning the signing of a collective-bargaining
agreement on a nonmandatory subject of bargaining,
namely, that the Union pay the Company for damages of
an undetermined cause.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith
with the Union as the exclusive bargaining representative
of its employees in the unit described above.
(b) On request by the Union forthwith execute the col-
lective-bargaining agreement upon which agreement was
reached with the Union.
(c) Give retroactive effect to the terms and conditions
of employment of the collective-bargaining agreement
and make whole its employees for any losses they may
59 See generally his Plumbing Co., 138 NLRB 716 (1962).
38 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall , as provided in Sec. 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ASHE BRICK CO. 1393
have suffered by reason of the Company 's failure to sign
the agreement.
(d) Place on a preferential hiring list , by seniority or
some other nondiscriminatory test, all employees who
were on strike on the date the strike was converted from
an economic to an unfair labor practice strike.
(e) Preserve and , on request , make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its Van Wyck, South Carolina facility
copies of the attached notice marked "Appendix."39
Copies of the notice , on forms provided by the Regional
S° If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
Director for Region 11, after being signed by the Com-
pany's authorized representative, shall be posted by the
Company immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company
to ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board, or any of its duly authorized representatives, may
obtain discovery from the Company, its officers, agents,
successors, or assigns, or any other person having knowl-
edge concerning any compliance matter, in the manner
provided by the Federal Rules of Civil Procedure. Such
discovery shall be conducted under the supervision of
the United States Court of Appeals enforcing this Order
and may be had on any matter reasonably related to
compliance with this Order, as enforced by the court.